Chapter 14 Civil Rights and EEOP Requirements All organizations that receive Federal funds are subject to prohibitions against discrimination in the provision of services under a program or in their employment practices. The Act contains a significant level of detail about these requirements. The OJP Office of Civil Rights (OCR) is primarily responsible for auditing SAA's and other Federal grant recipients for compliance with general discrimination requirements. OCR has prepared detailed procedures relating to the Equal Employment Opportunity (EEO) requirements, especially as they relate to required submission of Equal Employment Opportunity Plans (EEOP's). These procedures are distributed as part of the award documents sent to grantees. This chapter provides an overview of the requirements related to discrimination in grant-funded activities and to compliance by the SAA's and subgrantees with EEOP rules. Additional information on the EEOP process is contained in Appendix H. 14.1 Prohibition Against Discrimination in the Conduct of Federally Funded Grant Activities The most important requirement for all recipients of Federal funds, regardless of the type of entity or the amount of money awarded, is that they not discriminate against any person in any program funded in whole or in part by Federal financial assistance. 14.1a Anti-discrimination Requirements Applicable to Byrne Grantees Section 809 (c) (1) of the Act specifies that: No person in any State shall on the ground of race, color, religion, national origin, or sex [or disability] be excluded from participation in, be denied the benefits of, or be subjected to discrimination under or denied employment in connection with any program or activity funded in whole or in part with the funds made available under this [Act]. Section 504 of the Rehabilitation Act of 1973 expanded this section to prohibit discrimination on the basis of disability. States are bound also by Title VI of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race and national origin. Program services funded through Federal grants must be assessable and delivered in an equitable manner to all segments of the service population. The recipient organization's practices, including the composition of its programs and its workforce, its hiring practices, and the services it provides, must be fair and in compliance with Federal laws. Employment restrictions that could have a discriminatory impact are prohibited. Each entity receiving Federal funds also must comply with the EEO requirements set forth in 28 CFR 42.204. The Act's language is augmented by specific references to other Federal regulations in the Certified Assurances signed by the designated State recipient of the Byrne Formula Grant (the SAA). (See Certified Assurances #16 through #19 in Appendix B.) Pursuant to Certified Assurance #16, the SAA must comply with the nondiscrimination requirements of the Act at Section 809; Title VI of the Civil Rights Act of 1964, as amended; Section 504 of the Rehabilitation Act of 1973, as amended; Title II of the Americans With Disabilities Act (ADA) of 1990; Title IX of the Education Amendments of 1972; the Age Discrimination Act of 1975; the Department of Justice Nondiscrimination Regulations, 28 CFR Part 42, Subparts C, D, E and G; and Department of Justice Regulations on Disability Discrimination, 28 CFR Part 35 and Part 39. These assurances not only bind the SAA, as the initial recipient of Byrne funds, to comply with all applicable nondiscrimination laws and regulations but also require the SAA to ensure that its subgrantees and contractors are in compliance. Therefore, the SAA must obtain similar assurances from its subgrantees and contractors as a condition of the extension of Federal funds to these subrecipients. Further, as part of the application, the State is required to give BJA the name, title, address, and telephone number of the designated civil rights contact person for the State. This person serves as liaison with OCR. This form, discussed in Section 3.1c(4) of this Guidance and reproduced in Appendix B, also asks for the number of persons employed by the recipient organization (the SAA). Please note this request is for the number of employees within the organization's entire workforce and not simply the number of employees within the unit directly responsible for Byrne Formula Grant Program administration. For example, if the SAA is housed within the State's Department of Public Safety, which has 3,000 employees including 12 persons who work directly on the Byrne Grant, the number to be inserted on this form should be 3,000. This form is related to the EEOP requirement discussed in Section 14.2 of this chapter. 14.1b Compliance Options All OJP agencies that grant Federal funds, including BJA, have the responsibility to enforce compliance with these civil rights requirements. An OJP agency may not legally provide funds to an entity that it knows or should have known is engaging in illegal discrimination. The following tools are used at the Federal and State level to audit, monitor, and otherwise ensure persons are not being excluded from participation in, denied the benefits of, subjected to discrimination under, or denied employment in connection with any program or activity. (1) Certified Assurances and Special Conditions Certified Assurances are used to ensure that the recipients of Federal funds are aware of the nondiscrimination requirements and of the need to certify nondiscrimination with their applications for funding. Special Conditions may be placed on awards as a reminder to subgrantees of these requirements or to ensure compliance. (2) EEOP Reviews The purpose of an EEOP is to ensure full and equal participation of men and women regardless of race or national origin in the workforce of the recipient agency. Subgrantees should maintain EEOP's on file in their offices. The SAA may periodically review subgrantee EEOP's, and often subgrantee EEOP's are also maintained on file with the SAA. These files are also subject to review by OJP, regardless of the level of funding of a program. (3) Compliance Reviews OCR conducts periodic compliance reviews to determine whether the services or activities of a program are being delivered in an equitable manner without regard to race, color, national origin, sex, religion, or disability. States also are encouraged to conduct periodic compliance reviews of their subgrantees. (4) Complaint Investigations Any individual or group can file a complaint against recipients of Federal funding, on the grounds of denial of benefits or employment, exclusion from participation, or other type of discrimination. For BJA grantees, these complaints are filed directly with OCR. Grantees usually achieve voluntary compliance; however, suspension or termination of funding can result where a determination of noncompliance is made. SAA's also have the responsibility to report court cases in which a finding of discrimination against it has been made. Certified Assurance #19 requires this submission and asks the SAA to assist BJA by reporting noncompliance or deficiencies regarding its civil rights record. 14.2 The EEOP An EEOP is a comprehensive document that analyzes the agency's workforce in comparison to its relevant labor market and agency employment practices to determine their impact on the basis of race, sex, or national origin. The EEOP includes a written analysis that provides a statistical profile of the internal workforce by race, sex, and national origin; identifies problems in employment practices and procedures; specifies corrective action; and forms the basis of ongoing evaluation. 14.2a General Procedures for Meeting the EEOP Requirements Pursuant to Certified Assurance #17, SAA's and subgrantees that meet all of the following criteria are required to maintain an EEOP on file for review by OJP, if requested. The organization must have 50 or more employees; have received a total of $25,000 or more in grants or subgrants; and have 3 percent or more minorities in its service population. However, SAA's and subgrantees with more than 50 employees and $25,000 or more in grants must prepare an EEOP on employment practices affecting women, even if less than 3 percent of its employees are minorities. By policy, OJP has determined that State and local grantees and subrecipients must submit an EEOP for review when receiving a single award of $500,000 or more or $1 million or more within an 18-month period. This requirement includes all BJA formula grantees (SAA's) except those with fewer than 50 employees and a few subgrantees. In accordance with Certified Assurance #18, all Byrne formula grant awards are subject to OCR review and approval of the recipient's EEOP (if one is required). Beginning in FY 1995, States are expected to submit EEOP's directly to OCR rather than through the grantor agencies (i.e., BJA) as previously required. However, subgrantees falling within the specified criteria are still expected to submit their EEOP's through the SAA and BJA to OCR. Under these newly established procedures, OCR will notify a grantee directly if the EEOP is deficient. Should deficiencies not be resolved, OCR will send a final delinquency letter to the grantee. Grantees will have a maximum of 60 days to come into compliance. After 60 days, drawdown of funds will be suspended. OCR will notify the grantee and BJA, providing BJA with copies of all correspondence with the grantee relating to its decision. When an EEOP is approved, OCR notifies BJA, which in turn provides an official notice to the SAA via a Grant Adjustment Notice (GAN). GAN's are also used to approve subgrantee EEOP's submitted for OCR review and approval. 14.2b Developing an EEOP An EEOP has the following 7 components: An introduction stating that the plan is current and reflects the time period of the award. A breakdown of the agency's current workforce by race, sex, national origin, and job category (e.g., professional, supervisory, or clerical). A breakdown of the available workforce in the community by race, sex, national origin, and job category. A comparison of these breakdowns and identification of underutilization, if any. Specific goals based upon the findings of underutilization. Specific steps that will be taken to achieve the goals. A plan to disseminate the EEOP to all employees and to the general public. The following information is provided to guide States in preparing these components. (1) Introduction The introduction to the EEOP should contain basic information about the recipient agency and an overview of its personnel management and operations. Basic information should include the name, address, and phone number of the grantee; program numbers, names, and funding levels; and names, addresses, and phone numbers of program directors. Most importantly, the introduction should state the agency's EEO policy and the effective date and duration of the EEOP. The EEOP must cover the time period of the grant award and be signed into effect by an agency official. The personnel management and operations overview should include a brief summary of ongoing EEO efforts and progress in meeting EEO goals. (2) Grantee's Workforce Analysis The grantee must provide a statistical breakdown of its current workforce by race, sex, national origin, and job category. These statistics should include the number and percentages of people in each job category of a given classification (race, sex, or national origin). In other words, if the grantee has four professionals three white males and one Hispanic male the chart will display 3 for the number and 75 for the percentage in the block for white male professionals, 1 and 25 percent in the block for Hispanic male professionals, and 0 and 0 percent in all other professional blocks. Appendix H provides a model chart for the statistical breakdown of the current workforce. (3) Community Labor Statistics The grantee must provide a similar statistical breakdown of the available community workforce by race, sex, national origin, and job category. The data should reflect the community that forms the grantee's hiring pool. These data may be obtained from various sources, including the local office of the U.S. Department of Labor, Bureau of Labor Statistics; the U.S. Census Bureau; local, county, and/or State planning commission; local chamber of commerce; local employment agencies; local social service agencies; city and county planning commissions; State and local institutions of higher education (state universities); and local public libraries. Whatever the source, the data must be based on the 1990 census statistics. The format of this breakdown should also follow the structure of the chart presented in Appendix H. As with the grantee's workforce analysis, the community workforce analysis chart should contain both amounts and percentages, using the same method of conversion as explained under (2) above. (4) Underutilization Analysis A third chart compares the composition of the grantee workforce with that of the community to determine if, and in what job categories, women and/or minorities (cross-classified by gender) are underrepresented. This underutilization analysis forms the basis for the EEOP. However, this chart presents only percentages as determined by subtracting the percentages obtained in the community labor statistical analysis from those obtained in the grantee's workforce analysis. In other words, if Hispanic males compose 25 percent of the grantee's professional employees, and Hispanic males make up 50 percent of professionals in the community workforce, 50 percent would be subtracted from 25 percent. The resulting figure, -25 percent, would be placed in the block on the underutilization analysis for Hispanic male professionals. This process should be repeated for all categories. The most important part of the underutilization analysis is a narrative section in which the grantee interprets the underutilization statistical analysis, pointing out areas of concern. For example, a finding might be that, "This agency demonstrates an underutilization of Asian American men in the executive job level. Their representation in the community workforce at that job level is 15 percent while at this agency it is only 2 percent." To determine the factors responsible for any underutilization, it may be necessary to evaluate the grantee's procedures in regard to recruitment, applications, testing, terminations, disciplinary actions, and promotions. For example, an underutilization analysis reflecting that African Americans or women are underrepresented in all job levels demonstrates that the grantee is not hiring these individuals in a reasonable manner, given their representation in the community. To determine what steps would best rectify this situation, the grantee should scrutinize its past recruitment efforts and hiring practices. Perhaps women have not been targeted for recruitment and thus are not applying to the degree that men are. Conversely, women may be applying to the organization in large numbers but may fail to meet legitimate job requirements and thus may be disproportionately rejected for employment. For example, the entry-level examination or other requirement may put women at a disadvantage and result in their being screened out. (5) Goals The grantee must set specific goals based on the results of the underutilization analysis identified to reduce each type of underutilization. Broad, general goals such as the following are insufficient: "It is our ambition to have a workforce that is more representative of the community." A specific goal would be one that states, "Because African American women are underrepresented in the higher levels of our organization in jobs such as Comptroller and Agency Administrator, we will evaluate our promotion practices to ensure that African American women are receiving equal opportunity to advance and eliminate any barriers to their assignment to these positions." Goals should be reasonably attainable and based on a realistic timetable. (6) Steps To Achieve the Goals After establishing EEO goals, the grantee must identify the steps needed to meet its goals. Because the most effective steps will be those that directly address the reasons for any underutilization of women and minorities, the grantee should attempt to pinpoint the factors that put women and/or minorities at a disadvantage in this particular organization. Once the grantee has identified the cause(s) of the underutilization, it can present the best steps for addressing any inequities. Specific organizations and publications can be contacted for recruitment, examinations can be revised, and requirements that do not pertain to job performance can be eliminated. The grantee may wish to offer classes that will better prepare women and minorities for entry-level and/or promotion examinations. Tailoring the EEOP to the grantee's particular needs will enhance the likelihood of realizing the goals established. (7) Dissemination Finally, the grantee must describe the methods it will use to disseminate the EEOP to all existing personnel and new job applicants. This dissemination plan must include the name of the person designated to implement the EEO Program for the grantee agency.